Protest Decisions

IN RE: GERALD L. THOMPSON,
Eligibility Decision 2000 EAD 38
Issued: October 16, 2000
OEA Case No. E100301SO

Gerald L. Thompson, secretary-treasurer of Local Union 767, filed a pre-election protest

pursuant to Article XIII, Section 2(b)(1) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). By letter received on October 3, 2000, Mr. Thompson contends that Dan Williams' nomination as a delegate was invalid because his only nominator, Paul Cioffre, was ineligible to nominate him since Mr. Cioffre did not have his dues paid through September 2000.

Election Administrator Representative Lois M. Tuttle investigated this protest.

I. Circumstances Underlying Mr. Cioffre's Suspension and Dues Arrearage

To be eligible for nomination, a member must be nominated and seconded by a member in good standing, each with his/her dues paid through the month prior to the nominations meeting. Rules, Article II, Section 5(h). Local Union 767's nominations meeting for delegates and alternate delegates was held on October 1, 2000. Therefore, a local 767 member who wished to nominate a candidate for a delegate or alternate delegate would have to be in good standing, with his/her dues paid through September 2000 to be eligible.

The investigation revealed that Mr. Cioffre, a Local Union 767 member and employee of the United Parcel Service (hereinafter "UPS"), was dismissed from his job at some point in April or May 1998. Until that time, his employer had been timely and regularly remitting his dues to his local pursuant to his checkoff authorization. The last month in 1998 for which UPS remitted his dues in accordance with his checkoff authorization was May 1998.

From June 1998, the first or second month following his dismissal, to October 1998, Mr. Cioffre did not request a withdrawal card from his local, nor did he pay cash dues. Therefore, on November 4, 1998, in accordance with Article X, Section 5(c) of the IBT Constitution and Section 18(D) of the local's bylaws, the local placed him on suspension.

From November 1998 to December 1999, Mr. Cioffre still did not pay any dues to his local. This happened in spite of the fact that in early August 1999, Mr. Cioffre was reinstated to his job at UPS pursuant to an arbitration decision dated August 2, 1999, which awarded him full backpay for the entire dismissal period (April or May 1998 through July 1999), with the exception of one week's worth of pay which was withheld. In the Matter of Arbitration between: UPS, Dallas, TX and Teamsters Local 767, FMCS #98-11480 (August 2, 1999). Nevertheless, Mr. Cioffre did not pay the arrearage accumulated during the dismissal period within thirty days of receiving his backpay award in accordance with Article X, Section 5(c)of the IBT Constitution. Additionally, Mr. Cioffre did not pay any of arrearage accumulated between August 1999 through December 1999, after he had resumed working at UPS; nor were his dues deducted by UPS on his behalf during that period.

In January 2000, UPS checked off $23 from one of Mr. Cioffre's paychecks and remitted that amount, which reflects the proper amount of dues owed for the month of January 2000, to the local on Mr. Cioffre's behalf. For some reason, the TITAN record reflects a designation that Mr. Cioffre's suspension was lifted on January 31, 2000, the same date that his January 2000 payment was received. However, this designation was clearly improper as at that point, Mr. Cioffre had an arrearage for nineteen full months of upaid dues (for the months of June 1998 through December 1999) plus had not paid the reinitiation fee of $50 required by the local's bylaws to lift the suspension.

UPS did not checkoff any further amounts from Mr. Cioffre's February 2000 or March 2000 paychecks toward union dues. Mr. Cioffre admitted to the investigator that he realized this in February and/or March 2000, and that he spoke to someone from the local about this matter around that time. According to Mr. Cioffre, the person from the local looked into the matter and assured him that everything was "OK." The investigator could not obtain any further information about this alleged conversation, however, as after their second conversation Mr. Cioffre stopped returning any of her follow-up phone calls.

In April 2000, UPS resumed checking off Mr. Cioffre's dues and remitting them to his local. UPS continued doing so up through September 20, 2000. However, by that date Mr. Cioffre owed an arrearage for a total of twenty-one months' worth of dues (June 1998-December 1999 dues plus February-March 2000 dues) as well as the reinitiation fee of $50 to restore his union membership. In order to be eligible to nominate a candidate in the local's October 1, 2000 nominations meeting, therefore, Mr. Cioffre would have needed to pay the total of this arrearage plus the $50 reinitiation fee by the end of September 2000 to restore his union membership and to be paid up through the end of the month. However, as the second section of this decision explains, Mr. Cioffre did not, in fact, pay any of the arrearage nor the $50 initiation fee by the end of September 2000.

II. Circumstances Surrounding Mr. Thompson's Investigation of Mr. Cioffre's Membership Status and its Impact on the October 1, 2000 Nominations Meeting

In one of the investigator's two brief conversations with Mr. Cioffre, Mr. Cioffre stated that at some point in September 2000, he had discussed certain problems relating to his dues payments with the local's secretary-treasurer, Gerald Thompson, and that Mr. Thompson "knew all about it." Beyond this, Mr. Cioffre would not supply any more information as he would not return any of the investigator's subsequent phone calls. Therefore, all subsequent information has been obtained from Mr. Thompson, as well as two other local members, John Shortz, a business agent who had initially asked Mr. Cioffre to nominate him; and Dan Williams, a member running as an independent candidate who ultimately obtained Mr. Cioffre's nomination.

Mr. Shortz states that he first approached Mr. Cioffre in September 2000 and asked Mr. Cioffre if he would be willing to nominate him (Mr. Shortz) as a delegate in the International Convention. Mr. Cioffre agreed but, upon questioning, admitted that there could be some problems in his dues payments and, therefore, his membership status. Mr. Shortz therefore asked him to see Mr. Thompson to determine whether his dues were paid up and whether he was eligible to nominate him.

According to Mr. Thompson, Mr. Cioffre did not approach him about his dues status until Friday, September 29, 2000, two days before the local's nominations meeting was to take place. At that point, Mr. Thompson pulled Mr. Cioffre's TITAN record and told him that he noticed two problems. First, Mr. Thompson noticed that the TITAN record reflected that Mr. Cioffre was behind on dues for at least two months, August 2000 and September 2000. In addition, he noticed that Mr. Cioffre had not paid the reinitiation fee of $50 in order to restore his membership to the union. Therefore, Mr. Thompson told Mr. Cioffre that he would have to pay an amount of $100, which reflected the two months' dues arrearage of $50, plus the $50 reinitiation fee, in order to be caught up on his dues and to restore his status as a member.[1]

According to Mr. Thompson and Mr. Shortz, both Mr. Thompson and Mr. Cioffre entered Mr. Shortz' office at some point between 1:00 PM and approximately 4:00 PM on September 29, 2000, and explained at least part of the problem with the dues arrearage. Mr. Cioffre told Mr. Shortz that he would have to make up his dues arrearage before he would be eligible to nominate Mr. Shortz. Mr. Cioffre told Mr. Shortz that he was short on cash, and asked Mr. Shortz to pay half of the dues arrearage identified by Mr. Thompson. Mr. Shortz agreed and handed Mr. Cioffre the $25. Shortly afterward, Mr. Cioffre reconsidered and handed Mr. Shortz back the $25. Mr. Cioffre told Mr. Shortz that he would go to an ATM machine instead (approximately a fifteen minutes' drive away), and pay the entire $50 himself. Both Mr. Cioffre and Mr. Thompson left Mr. Shortz' office.

Mr. Shortz states that soon after Mr. Cioffre left his office, he began to reconsider whether he wanted to use Mr. Cioffre as his nominator. He started thinking about the fact that although Mr. Cioffre had only mentioned being delinquent in paying dues, his TITAN record did not show that he had paid any reinitiation fee to lift his reflected suspension. However, Mr. Shortz believed that the local's bylaws required payment of a reinitiation fee of $50 to lift a suspension. Mr. Shortz spoke to Mr. Thompson who confirmed that every member did, in fact, have to pay the reinitiation fee before a suspension could be lifted. Mr. Shortz decided, therefore, that using Mr. Cioffre would be risky because he did not know if Mr. Cioffre planned to pay the $50 reinitiation fee as well as the $50 for the identified dues arrearage.

When Mr. Shortz returned to his office, there was a message on his voicemail waiting for him from Mr. Cioffre. In the message, Mr. Cioffre stated that he was having some problem in getting his money out from the ATM. Mr. Cioffre asked Mr. Shortz to go ahead and pay the entire $50, and he would repay him at the nominations meeting on Sunday. Mr. Shortz decided that, given all of the problems that might lie ahead in terms of Mr. Cioffre's status, he would definitely not ask Mr. Cioffre to nominate him. Therefore, he did not pay the $50 towards Mr. Cioffre's dues arrearage.

Mr. Cioffre did not return to the office that day. Mr. Shortz did not see or hear from him again until shortly before 10:00 a.m. on Sunday, October 1, 2000, just before the nominations meeting began. At that time, Mr. Shortz approached Mr. Cioffre and told Mr. Cioffre about his decision not to pay Mr. Cioffre's unpaid balance in union dues. Mr. Shortz told Mr. Cioffre to sit near him and his slate to show his support, though not to nominate him at the meeting. Then he walked away.

Dan Williams, the member whose nomination is the subject of this protest, states that he then approached Mr. Cioffre. At that time, Mr. Williams, an independent candidate, was in a bit of a jam. He realized that the two members whom he'd asked to nominate and second him had not shown up at the meeting. In place of one of those members, Mr. Williams asked Mr. Cioffre if he would nominate him at the meeting. Mr. Cioffre agreed. Mr. Williams, who had been the subject of the same wrongful UPS dismissal as Mr. Cioffre between April or May 1998 through August 1999, asked Mr. Cioffre if he had any problems with his dues status at that point. Mr. Cioffre said he did not, as had cleared up his dues prior to the meeting.[2]

Shortly thereafter, the nominations meeting started and Mr. Cioffre got up to nominate Mr. Williams. Although Mr. Shortz, thinking that Mr. Cioffre was still going to try to nominate him, at first tried to stop Mr. Cioffre from standing up for him, Mr. Williams got up and explained that Mr. Cioffre was going to nominate him instead. Mr. Shortz sat down, looked at Mr. Williams and said, "all right, then."

Mr. Cioffre then proceeded to nominate Mr. Williams at the nominations meeting. Matt Laasko, another member whose eligibility is not in dispute, seconded Mr. Williams. It is undisputed that no one else besides Mr. Cioffre nominated Mr. Williams at the meeting, and that there were no written nominations for Mr. Williams prior to the meeting.

III. Analysis

On October 1, 2000, when Mr. Cioffre nominated Mr. Williams, he was not a member in good standing. He had a dues arrearage for the period between June 1998 through December 1999, and for the months of February 2000 and March 2000. He was not working at all during June 1998 through July 1999. He never paid cash dues during these months, when he clearly had an obligation to do so. He was properly put in suspension pursuant to Article X, Section 5(c) of the IBT Constitution and Section 18(D) of his local's bylaws. He never paid the arrearage he owed when he resumed work in August 1999, even after receiving a complete backpay award (except for one week's pay that was withheld); nor did he pay the reinitiation fee of $50 required under his local's bylaws. Therefore, the January 31, 2000 entry which reflects a lifting of his suspension was clearly erroneous.

While it is unclear whether Mr. Cioffre knew his employer was not paying his dues between the period August 1999 through December 1999, after he resumed working with UPS, he admitted that he knew that his employer had not taken any dues out of his March 2000 or April 2000 paychecks. Additionally, Mr. Cioffre was informed of at least part of the dues arrearage on Friday, September 29, 2000, when Mr. Thompson ran his TITAN record and informed him that he was two months behind in dues. In fact, Mr. Cioffre was, at that time, behind in twenty-one months' worth of dues. He was also informed of his obligation to pay the $50 reinitiation fee on September 29, 2000. Nevertheless, Mr. Cioffre did not pay even the identified two months' worth of arrearage, nor the $50 reinitiation fee at that time. Therefore, it is clear that Mr. Cioffre was still in suspension on October 1, 2000; that he had a significant arrearage at that time; and that he could not be a member in good standing. Equally clear is the fact that he certainly did his coworker and fellow member, Mr. Williams, no favor when he agreed to nominate him at the October 1, 2000 meeting at a time when he knew that his dues had not, in fact, been "cleared up."

Since Mr. Williams' only nominator was Mr. Cioffre, his nomination unfortunately cannot stand. If anything, this case is instructive as to the responsibility and care which a candidate should take in selecting his/her nominator(s) and seconder(s). Each nominator, seconder, and candidate, is "strongly recommended" to ask the Election Administrator to verify his/her eligibility prior to the local union nomination meeting under Article VI, Section 4 of the Rules. This case is an unfortunate example of why each candidate might want to require his/her nominator and seconder to obtain such verification before relying upon their nomination and/or second. Additionally, the option of seeking multiple nominations and/or seconds is strongly recommended where the candidate is unsure of the membership status of at least one of his/her nominators or seconds.

Accordingly, it is the determination of the Election Administrator that Mr. Cioffre was INELIGIBLE to nominate any candidate for delegate or alternate delegate to the International Convention; and that, as Mr. Cioffre was Mr. Williams' only nominator, Mr. Williams is INELIGIBLE to run for alternate delegate to the International Convention.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify that basis for the appear, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed below, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Avenue, N.W., Washington, D.C. 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Dolores C. Hall, Regional Director (South Area)

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